RAH v Director-General, Department of Justice and Attorney-General [2020] QCAT 406

Date: 21 October 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member McDonnell
Human Rights Act 2019 (Qld) Sections: ss 13, 26(2), 31, 34, 48, 58
Rights Considered: Right to a fair hearing; right not to be tried or punished more than once; right to protection of families and children
Other Legislation: Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19, 20, 24; Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 221, 226, 360, 580, Schedule 7
Keywords: Blue card

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, RAH. The Tribunal considered the applicant’s right to a fair hearing (section 31) and right not to be tried or punished more than once (section 34), as well as the right to protection of children (section 26(2)) under the Human Rights Act 2019 (Qld).

The applicant, RAH, was issued a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) in 2018 after a reassessment of his eligibility to hold a positive notice and blue card, which was prompted by a charge in the applicant’s police information: at [1]. RAH was convicted for a ‘common assault - domestic violence offence’ in 2017 and charged and found not guilty for two counts of rape in 2016: at [24] and [25]. As RAH was convicted of an offence other than a serious offence and had charges for a disqualifying offence for which he was not convicted, the Working with Children (Risk Management and Screening) Act 2000 (Qld) required that he be issued with a positive notice unless the Tribunal was satisfied it was an ‘exceptional case, in which it would not be in the best interests of children for a working with children clearance to be issued’: at [11].

The Tribunal noted that it was acting in an administrative capacity and was therefore a ‘public entity’ for the purposes of the Human Rights Act 2019 (Qld): at [76]. As a public entity, the Tribunal was required to interpret statutory provisions in a way that was compatible with human rights and give proper consideration to human rights: at [76].

In conducting its review, the Tribunal had regard to the applicant’s right to a fair hearing (section 31) and his right not to be tried or punished more than once (section 34), as well as the right of every child to ‘the protection that is needed by the child, and is in the child’s bests interests, because of being a child’: at [80]. The Tribunal observed that its review of the respondent’s decision did not constitute a retrial and it was conducted for the purpose of protecting children rather than to impose additional punishment on the applicant: at [77] and [78].

The Tribunal confirmed the respondent’s decision that RAH’s application for a blue card was an exceptional case, in which it would not be in the best interests of children for a blue card to be issued: at [82] and [83]. The Tribunal was particularly concerned that the applicant had taken limited steps to reduce or manage their stress when the same triggers were present, which could promote further offending: at [71]. The Tribunal was satisfied that this determination was compatible with human rights, and to the extent that there were any limitations on those rights, the limitations were reasonable and justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld): at [80].

Visit the judgement: RAH v Director-General, Department of Justice and Attorney-General [2020] QCAT 406